which Rainer had sent by registered letter. The conviction was quashed because the defendant was not in the employ of Rainer, but in the employ of the United States government. Again, where a clerk collects money for his employer without authority, and fraudulently appropriates it he is not guilty of embezzlement.11 Nor is a person, not a public officer, who receives public money by representing that he is entitled to receive it, guilty of embezzlement.12 It has been held, however, that an agent, who, after the expiration of his term, receives money belonging to his former employer and fraudulently converts it to his own use, is guilty of embezzlement.1

13

§ 511. The fraudulent intent.-To constitute embezzlement the property must be appropriated with fraudulent intent.14 Mere breach of contract is not sufficient. Thus where a lawyer, who also acted in the capacity of a loan and land agent, was convicted of embezzling two hundred seventyfive dollars from a client, and the proof showed that the latter had given him four hundred dollars to loan for her; that he had loaned this for her and also seven hundred dollars more which she gave him to loan for her; that he showed her a letter from a man who had forty acres of land for sale, and requested her to let him have the money to buy the land, stating that he knew of a purchaser who would buy it at an advance; that she let him have four hundred dollars more. to buy the land, saying that he might have the profit; that a month or so later she asked him for her money, and that he

11 Brady v. State, 21 Tex. App. 659, 1 S. W. 462.

12 State v. Bolin, 110 Mo. 209, 19 S. W. 650.

13 State v. Jennings, 98 Mo. 493, 11 S. W. 980.

14 State v. Moyer, 58 W. Va. 146, 6 Ann. Cas. 344; State v. Sage, 22 Idaho 489, 126 Pac. 403, Ann. Cas.

1914 B, 251; Ambrose v. United States, 45 App. D. C. 112; State v. Burgess, 268 Mo. 407, 188 S. W. 135; State v. Gulledge, 173 N. Car. 746, 91 S. E. 362 (bank president); State v. McAvoy, 40 R. I. 437, 101 Atl.. 109; People v. Scudder, 163 N. Y. S. 739, 177 App. Div. 225; State v. Ward, 96 Wash. 550, 165 Pac. 794.

gave her one hundred dollars and a chattel mortgage for twenty-five dollars which he owned; that several months later he conveyed to her forty acres of land as security until he could pay her the balance. The conviction on appeal was quashed on the ground that the defendant did not entertain a fraudulent intent.15 Again where a person retains property, under a bona fide claim of right, however untenable or frivolous his claim may be, he is not guilty of embezzlement for the reason that he does not entertain felonious intent.16 And mere neglect to turn over funds belonging to another does not constitute embezzlement for the same reason.17 Where the funds are feloniously retained, however, demand that they be turned over is not essential.18

§ 512. Intent or offer to return property.-The fact that one who intentionally and wrongfully appropriates the property of another lawfully in his possession, intends to subsequently return it, or make restitution to the owner, does not make his offense any the less embezzlement.19

After the crime of embezzlement has been consummated, an offer by the defendant to turn over the property to the owner will not purge him of the offense. Nor will a settlement with the owner have this effect.20

§ 513. Ownership of the property in another.-To constitute common-law larceny, ownership of the property appro

15 People v. Hurst, 62 Mich. 276, 28 N. W. 838.

16 Reg. v. Norman, Car. & M. 501.

17 Kribs v. People, 82 Ill. 425; Etheridge v. State, 78 Ga. 340; Penny v. State, 88 Ala. 105, 7 So. 50; Fitzgerald v. State, 50 N. J. L. 475, 14 Atl. 746; People v. Galland, 55 Mich. 628, 22 N. W. 81.

18 Hollingsworth v. State, 111 Ind. 289, 12 N. E. 490; State v. Comings, 54 Minn. 359, 56 N. W.

50; Wallis v. State, 54 Ark. 611, 16 S. W. 821.

19 State v. Duerksen, 8 Okla. Cr. 601, 129 Pac. 881, 52 L. R. A. (N. S.) 1013n.

20 State v. Pratt, 98 Mo. 482, 11 S. W. 977; Robson v. State, 83 Ga. 166, 9 S. E. 610; People v. De Lay, 80 Cal. 52, 22 Pac. 90; Fleener v. State, 58 Ark. 98, 23 S. W. 1; State v. Baxter, 89 Ohio St. 1019, 104 N. E. 331, 52 L. R. A. (N. S.) 1019.

priated must be in another. And the embezzlement statutes of nearly all the states which undertake to define the crime provide that the subject of the offense must be the property of another. Moreover, this has been almost universally construed to mean that it must be wholly the property of another. As a result, a member of an ordinary partnership can not, as a rule, be guilty of embezzling partnership property.21

It is to be observed, however, that where the statute is silent as to ownership of the property, and simply provides that an agent, etc., who embezzles or converts to his own use "anything of value which shall come into his possession by virtue of his employment" shall be guilty of embezzlement, this constitutes the test of the crime.22 Thus the cashier of an unincorporated banking association who was also a stockholder therein, who by virtue of his employment fraudulently converted to his own use assets of the association was held guilty of embezzlement.25

It has been well observed that considering the statutes are numerous, and in some respects diverse in their provisions, the practitioner should be cautious about coming to conclusions upon a question under the law of embezzlement, unless, when he examines a decision relied upon, he first sees whether the statute on which it was rendered is, in its terms, similar to the one of his own state.24

21 McCrary v. State, 51 Tex. Cr. 502, 103 S. W. 924, 123 Am. St. 905, 14 Ann. Cas. 722; State v. Hogg, 126 La. 1053, 53 So. 225, 29 L. R. A. (N. S.) 830, 21 Ann. Cas. 124; People v. Dettmering, 278 Ill. 580, 116 N. E. 205. See People v. Maljan, 34 Cal. App. 384, 167 Pac. 547. 22 State v. Kusnick, 45 Ohio St. 535, 15 N. E. 481, 4 Am. St. 564. See also State v. Moyer, 58 W. Va. 146, 6 Ann. Cas. 344; Commonwealth v. Jacobs, 126 Ky. 536, 104

S. W. 345, 13 L. R. A. (N. S.) 511, 15 Ann. Cas. 1226; People v. Birnbaum, 114 App. Div. 480, 100 N. Y. S. 160, Derby's Cases 493; State v. McAvoy, 40 R. I. 437, 101 Atl. 109; State v. Klingman, 172 N. Car. 947, 90 S. E. 690; Smith v. State (Fla.), 76 So. 334.

23 State v. Kusnick, 45 Ohio St. 535, 15 N. E. 481, 4 Am. St. 564. 24 2 Bish. New Crim. L. (8th ed.), § 326; Mehaffey v. State (Ala. App.), 75 So. 647.

§ 514. Money paid or property delivered by mistake.As previously stated, the essential element of embezzlement is breach of trust. It follows, therefore, that where money is paid or property delivered by mistake, and the receiver of it wrongfully converts it to his own use, he is not guilty of this crime. In such case there is no breach of a trust or violation of a confidence intentionally reposed by one party and voluntarily assumed by another.25 A bank depositor, who was paid by mistake of the treasurer two hundred thirty dollars, instead of one hundred thirty dollars, the amount he had on deposit, and who, knowing of the mistake and knowing he was not entitled to the money which the treasurer afterward demanded of him, was not liable for embezzlement even though he appropriated the money to his own use with an intent to deprive the bank of its property.2

25 Commonwealth v. Hays, 14 Gray (Mass.) 62, 74 Am. Dec. 662, Derby's Cases 488. See also, Neal v. State, 55 Fla. 140, 46 So. 845, 19 L. R. A. (N. S.) 371.

26 Commonwealth v. Hays, 14 Gray (Mass.) 62, 74 Am. Dec. 662, Derby's Cases 488.

§ 516. Definition and essentials.-Forgery, at common law, as defined by Blackstone, is the fraudulent making or altering of a writing to the prejudice of another's right.1 In its broadest sense it includes the making or altering of any writing or record with the intent to prejudice the interest

14 Bl. Comm. 247. Bishop defines it as the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of some

legal efficacy, or the foundation of a legal liability. 2 Bish. New Crim. L. (8th ed.), § 572. See also, Reg. v. Closs, 7 Cox Cr. C. 494, Derby's Cases 523.